In re Air Crash Peixoto De Azeveda, Brazil
| Decision Date | 02 July 2008 |
| Docket Number | No. 07 MD 1844(BMC)(JO).,07 MD 1844(BMC)(JO). |
| Parties | In re AIR CRASH NEAR PEIXOTO DE AZEVEDA, BRAZIL, ON SEPTEMBER 29, 2006. |
| Court | U.S. District Court — Eastern District of New York |
Dawn M. Mefford, Paul J. Passanante, Simon Passanante, PC, Leo W. Nelsen, Jr., Nelsen & Lee, P.C., Steven J. Hughes, Rabbitt and Pitzer, Thomas J. Hayek, Behr and McCarter, St. Louis, MO, Thomas P. Schult, Nerkowitz Oliver, LLP, Kansas City, MO, James P. Kreindler, Daniel O. Rose, David C. Cook, Kreindler & Kreindler, LLP, Nicholas Robert Diamand, Steven E. Fineman, Lieff Cabraser Heimann & Bernstein, LLP, Luigi P. De Maio, De Maio & Hughes, LLC, Charles
L. Kerr, Paul Galante, Morrison & Foerster, LLP, George P. McKeegan, McKeegan & Shearer, P.C., Randal R. Craft, Jr., Alan D. Reitzfield, Richard J. Pelliccio, Holland & Knight LLP, Stpehen Stegich, III, Condon & Forsyth LLP, New York, NY, James A. Gallagher, Jr., Gallagherm Gosseen & Faller, Garden City, NY, Steven C. Marks, Ricardo M. Martinez-CID, Podhurst Orseck, P.A., James Neil Robinson, II, Rudolph F. Aragon, White & Case, Lyndall Molthan Lambert, Rodolfo Sorondo, Jr., Holland & Knight, Miami, FL, Brian L. Lawler, David Lee Fiol, Lexi J. Hazam, Robert L. Lieff, Lieff Global, LLP, San Francisco, CA, Curtis B. Miner, Lewis S. Edison, Colson Hicks Edison, Jeanette C. Lewis, Haggard Law Firm, PA, Robert L. Parks, Law Offices of Robert L. Parks P.L., Coral Gables, FL, Bradley R. Bowles, Michael P. Verna, Bowles & Verna, LLP, Walnut Creek, CA, Edward Herbert Zebersky, Zebersky & Payne, Hollywood, FL, Ladd Sanger, Slack & David, LLP, Dallas, TX, Anthony Tarricone, Kreindler & Kreindler, LLP, Michael T. Sullivan, Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP, Boston, MA, Arthur Ballen, Cherry Hill, NJ, Christopher D. Thomas, Nixon Peabody LLP, Rochester, NY, Don G. Rushing, Erin M. Bosman, Morrison & Foerster LLP, San Diego, CA, Ann Thornton Field, Catherine B. Slavin, Eric D. Freed, James G. Lare, Thomas R. Harrington, Cozen O'Conner, Philadelphia, PA, Michael James Sommi, Cozen O'Conner, New York, NY, John U. Edwin, Brant W. Bishop, Kirkland & Ellis, Washington, DC, Ashleigh Jennifer Smith, Hassell, Frank Bradley Hassell, Moorhead & Carroll, Daytona Beach, FL, Dennis Parker Waggoner, Tampa, FL, for Plaintiffs.
Ralph Vincent Pagano, Mendes & Mount, LLP, George P. McKeegan, McKeegan & Shearer, P.C., Charles L. Kerr, Morrison & Foerster, New York, NY, Christopher D. Thomas, Nixon Peabody, LLP, Rochester, NY, James A. Gallagher, Jr., Garden City, NY, for Defendants.
*ALL CASES*
Presently before the Court are motions, from all defendants, to dismiss this multidistrict litigation based upon forum non conveniens. Several defendants have also moved for a stay of discovery, and one defendant has filed a motion to strike. Because the motions to stay discovery, and the motion to strike, are predicated on the motions to dismiss, they are all considered together. For the reasons set forth below, the motion to strike is granted in part and denied in part, the motions to stay discovery are denied, and the motions to dismiss are conditionally granted.
This multi-district litigation involves claims for wrongful death brought by the surviving family members of passengers of Gol Linhas Inteligentes S.A. ("Gol") Boeing 737-800 Flight 1907, which crashed into the Amazon rainforest on September 29, 2006, killing all on board. Plaintiffs allege that the Gol flight was carrying 154 passengers and crew members and was en route from Manaus, Brazil to Rio De Janeiro, Brazil when it apparently collided with an Embraer EMB-135BJ Legacy 600 jet operated by defendant ExcelAire. The Legacy safely made an emergency landing at a Brazilian military base.
Plaintiffs are all Brazilian citizens and residents, and the decedents they represent were all Brazilian citizens and residents at the time of their deaths. None of the named plaintiffs are residents or citizens of the United States, nor were the decedents at the time of their deaths.
Defendant Honeywell is a Delaware corporation with its headquarters in Morristown, New Jersey. The Honeywell division responsible for the design, development, certification, testing and support of aircraft avionics components has its principal facility in Phoenix, Arizona. The avionics units at issue here were designed in Phoenix and manufactured in Singapore. Honeywell also maintains a customer support facility at Embraer's manufacturing plant in Sao Jose dos Campos, Brazil. That facility provides technical support to Embraer for Honeywell products installed on aircraft manufactured by Embraer.
Defendants Lepore and Paladino are residents of New York State and the pilots that were in control of the Legacy jet at the time of the accident (the "Legacy pilots"). Lepore and Paladino, both U.S. residents, were trained and qualified in the U.S. before traveling to Embraer's manufacturing facility in Sao Jose dos Campos, Brazil to ferry the newly manufactured plane from the facility to New York. The ferry flight was to last two days, with an overnight layover in Manaus, Brazil for export approval. The Legacy never made it out of Brazil.
Defendant ExcelAire is a New York corporation with its principal place of business in New York. It is an aviation firm specializing in jet and helicopter charters, aircraft management, maintenance and sales. The Legacy pilots were flying an ExcelAire Legacy jet at the time of the accident.
Defendants Raytheon, Lockheed Martin, and Amazon Tech (jointly the "SIVAM defendants") are all U.S. corporations and each has its principle place of business in the U.S.; Raytheon is a Delaware corporation with its principle place of business in Massachusetts, Lockheed Martin is a Maryland corporation with its principle place of business in Maryland, and Amazon Tech is a Delaware corporation with its principle place of business in Florida. All three defendants worked on Brazil's SIVAM— the radar system for the Amazon region of Brazil. The Brazilian government considers SIVAM to be part of its national security infrastructure. The SIVAM defendants designed and manufactured in the U.S., at least in part, the products used in SIVAM. All the work the SIVAM defendants did on SIVAM was at the direction of the Brazilian government; SIVAM was intended solely for operation in Brazil, was installed exclusively in Brazil, and was maintained exclusively by the Brazilian government at the time of accident. Raytheon designed, manufactured, installed, and integrated component parts for the SIVAM; Lockheed's primary contribution to SIVAM was the FPS-17 radar unit, which it designed and manufactured; and Amazon Tech's primary contribution to SIVAM was work on the software.
Defendant ACSS is, according to the complaint, either a Delaware LLC or a Delaware Corporation with its principal place of business in Arizona. ACSS manufactured the Traffic Alert and Collision Avoidance System ("TCAS") on board the Legacy jet.
A-Tech is a Brazilian technology company and parent of U.S. subsidiary, Amazon Tech. It is primarily responsible for integrating the SIVAM components to provide air traffic control services. The company is a special purpose vehicle created specifically to integrate SIVAM.
Embraer is headquartered in Brazil, and has three manufacturing facilities located in Brazil. Embraer is the manufacturer of the Legacy involved in the accident. Two Embraer employees were onboard at the Legacy at the time of the accident, and conducted preflight inspections of the Legacy that day. Embraer is also part of SIVAM.
Gol was the operator of the Boeing 737-800 that was involved in the mid-air collision. Gol is a low-cost airline commercial airline licensed by Brazilian civil aviation authorities. It does not have any international flights to the U.S., nor is it authorized to fly in the U.S.
Brazil's Centro Integrado de Defesa Aerea e Controle de Trafego Aereo ("CINDACTA" or "Brazilian ATC") is the Brazilian government agency responsible for control of Brazilian airspace in which this accident occurred. It operates under the auspices of the Brazilian Department of Defense, and its air traffic controllers are under the direction of the Brazilian military. A number of CINDACTA air traffic controllers have been suspended as a result of the accident.
Brazil's Centro de Investigacao e Prevencao de Acidentes Aeronauticos ("CNIPA") is the Brazilian governmental agency responsible for investigating aviation accidents, and is currently concluding its investigation of this accident.
The crash of Gol 1907 was the deadliest air disaster in Brazilian history at the time and has garnered significant attention from the Brazilian government as well as the press. The accident is currently being investigated by CENIPA, with the assistance of the U.S. National Transportation Safety Board ("NTSB"), technical advisors from the Federal Aviation Administration (the "FAA"), the Canadian TSB, and some of the private entities connected to the crash. CENIPA has published two preliminary reports and the investigation is in its last phase prior to publication of a final report. Several other Brazilian governmental agencies are also conducting or have conducted investigations of the accident, including committees formed by the Brazilian House of Representatives and Senate. Meanwhile, in the U.S., the NTSB and the FAA have issued their own reports concerning the crash.
In addition to this multi-district litigation proceeding, a number of court proceedings have been commenced in Brazil. A criminal proceeding is ongoing in Brazilian federal court, and multiple civil actions have been brought against Gol in Brazilian courts. Gol has admitted that it is strictly liable for the crash under Brazilian law on a 100%...
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